As filed with the Securities and Exchange Commission on March 30, 2005
Registration No. 333-123462
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UNITED NATURAL FOODS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 05-0376157
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
260 Lake Road
Dayville, CT 06241
(Address of Principal Executive Offices) (Zip Code)
United Natural Foods, Inc. 2004 Equity Incentive Plan
(Full Title of the Plan)
Steven H. Townsend
Chair of the Board, President and Chief Executive Officer
United Natural Foods, Inc.
260 Lake Road
Dayville, CT 06241
(Name and Address of Agent for Service)
(860) 779-2800
(Telephone Number, Including Area Code, of Agent for Service)
With a Copy to:
Paul V. Rogers, Esq.
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, DC 20004
(202) 662-6000
CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Proposed
Title of Each Class of Amount to be Offering Price Per Maximum Aggregate Amount of
Securities to be Registered Registered (1) Share (2) Offering Price (2) Registration Fee(3)
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Common Stock, par value
$0.01 per share ......... 1,000,000 shares $29.00 $29,000,000 $3,674.30
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, the
number of shares of Common Stock registered hereby is subject to
adjustment to prevent dilution by reason of any stock dividend, stock
split, recapitalization or other similar transaction.
(2) Calculated in accordance with Rule 457(h) under the Securities Act on the
basis of the average of the high and low sales prices per share of Common
Stock on March 16, 2005, as reported by the Nasdaq National Market.
(3) Previously paid with the Registrant's filing on Form S-8 on March 21,
2005.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I will be
sent or given to employees as specified by Rule 428(b)(1) under the Securities
Act of 1933, as amended. Such documents will not be filed with the Securities
and Exchange Commission (the "Commission") either as part of this registration
statement or as prospectuses or prospectus supplements pursuant to Rule 424 of
the Securities Act. These documents and the documents incorporated by reference
pursuant to Item 3 of Part II of this registration statement, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
United Natural Foods, Inc. (the "Registrant") hereby incorporates by
reference into this registration statement the following documents filed by it
with the Commission:
1. Annual Report on Form 10-K for the fiscal year ended July 31, 2004,
filed with the Commission on October 14, 2004;
2. Quarterly Reports on Form 10-Q for the fiscal quarter ended October
31, 2004, filed with the Commission on December 10, 2004, and for
the fiscal quarter ended January 31, 2005, filed with the Commission
on March 14, 2005;
3. Current Reports on Form 8-K, filed with the Commission on March 3,
2005 and March 4, 2005;
4. Description of the Registrant's Common Stock, par value $0.01 per
share, contained in the Registrant's Registration Statement on Form
8-A filed with the Commission on October 11, 1996, including any
amendment or report filed for the purpose of updating such
description; and
5. All reports filed by the Registrant with the Commission under
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended, since July 31, 2004.
In addition, all documents and reports filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the date of this registration statement and prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be part
hereof from the date of the filing of such documents or reports.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this registration statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this registration
statement.
To the extent that any proxy statement is incorporated by reference
herein, such incorporation shall not include any information contained in such
proxy statement which is not, pursuant to the Commission's rules, deemed to be
"filed" with the Commission or subject to the liabilities of Section 18 of the
Exchange Act. Further, nothing in this registration statement shall be deemed to
incorporate information furnished but not filed on Form 8-K.
The Registrant promptly will provide without charge to each person to whom
a prospectus is delivered a copy of any or all information that has been
incorporated herein by reference (not including exhibits to the information that
is incorporated by reference unless such exhibits are specifically incorporated
by reference into such information) upon the written or oral request of such
person directed to the Treasurer of the Registrant at its principal offices, 260
Lake Road, Dayville, Connecticut 06241, Telephone: (860) 779-2800.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware
provides that a corporation has the power to indemnify a director, officer,
employee or agent of the corporation and certain other persons serving at the
request of the corporation in related capacities against amounts paid and
expenses incurred in connection with an action or proceeding to which he is or
is threatened to be made a party by reason of such position, if such person
shall have acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, in any criminal
proceeding, if such person had no reasonable cause to believe his conduct was
unlawful; provided that, in the case of actions brought by or in the right of
the corporation, no indemnification shall be made with respect to any matter as
to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances.
Article Ninth of the Registrant's Amended and Restated Certificate of
Incorporation provides that a director or officer of the Registrant (a) shall be
indemnified by the Registrant against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement reasonably incurred in
connection with any litigation or other legal proceeding (other than an action
by or in the right of the Registrant) brought against him by virtue of his
position as a director or officer of the Registrant if he acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Registrant, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful, and (b)
shall be indemnified by the Registrant against all expenses (including
attorneys' fees) and amounts paid in settlement reasonably incurred in
connection with any action by or in the right of the Registrant by virtue of his
position as a director or officer of the Registrant if he acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Registrant, except that no indemnification shall be made with
respect to any such matter as to which such director or officer shall have been
adjudged to be liable to the Registrant, unless a court determines that, despite
such adjudication but in view of all the circumstances of the case, such person
is entitled to indemnity for such expenses. Notwithstanding the foregoing, to
the extent that a director or officer has been successful, on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice, he is required to be indemnified by the Registrant against all
expenses (including attorneys' fees) incurred in connection therewith. Expenses
incurred in defending a civil or criminal action, suit or proceeding shall be
advanced by the Registrant to a director or officer, at his request, upon
receipt of an undertaking by the director or officer to repay such amount if it
is ultimately determined that he is not entitled to indemnification.
Indemnification is required to be made unless the Registrant determines
(in the manner provided in the Amended and Restated Certificate of
Incorporation) that the applicable standard of conduct required for
indemnification has not been met. In the event of a determination by the
Registrant that the director or officer did not meet the applicable standard of
conduct required for indemnification, or if the Registrant fails to make an
indemnification payment within 60 days after such payment is claimed by such
person, such person is permitted to petition a court to make an independent
determination as to whether such person is entitled to indemnification. As a
condition precedent to the right of indemnification, the director or officer
must give the Registrant notice of the action for which indemnity is sought and
the Registrant has the right to participate in such action or assume the defense
thereof.
Article Ninth of the Registrant's Amended and Restated Certificate of
Incorporation further provides that the indemnification provided therein is not
exclusive, and provides that in the event that the General Corporation Law of
the State of Delaware is amended to expand the indemnification permitted to
directors or officers, the Registrant must indemnify those persons to the
fullest extent permitted by such law as so amended.
The Company has purchased a general liability insurance policy which
covers certain liabilities of directors and officers of the Company arising out
of claims based on acts or omissions in their capacity as directors or officers.
Article Eighth of the Registrant's Amended and Restated Certificate of
Incorporation provides that, except to the extent that the General Corporation
Law of the State of Delaware prohibits the elimination or limitation of
liability of directors for breaches of fiduciary duty, no director of the
Registrant shall be personally liable to the Registrant or its stockholders for
monetary damages for any breach of fiduciary duty as a director.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The list of Exhibits is incorporated herein by reference to the Index of
Exhibits.
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Post-Effective
Amendment No. 1 registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dayville, State of
Connecticut, on this 30th day of March, 2005.
UNITED NATURAL FOODS, INC.
By: /s/ Steven H. Townsend
-----------------------
Steven H. Townsend
Chair of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on the 30th day of March, 2005, by the
following persons in the capacities indicated.
Signature Title
--------- -----
/s/ Steven H. Townsend
-------------------------- Chair of the Board, President, Chief
Steven H. Townsend Executive Officer and Director
(principal executive officer)
/s/ Rick D. Puckett
-------------------------- Vice President, Chief Financial
Rick D. Puckett Officer and Treasurer (principal
financial and accounting officer)
/s/ Thomas B. Simone*
-------------------------- Vice Chair of the Board and Lead
Thomas B. Simone Independent Director
/s/ Michael S. Funk*
-------------------------- Director
Michael S. Funk
/s/ Richard Antonelli*
-------------------------- President of United Distribution and
Richard Antonelli Director
/s/ Gordon D. Barker*
-------------------------- Director
Gordon D. Barker
/s/ Joseph M. Cianciolo*
-------------------------- Director
Joseph M. Cianciolo
Signature Title
--------- -----
/s/ Gail A. Graham*
-------------------------- Director
Gail A. Graham
/s/ James P. Heffernan*
-------------------------- Director
James P. Heffernan
* By Rick D. Puckett, Attorney-in-Fact
EXHIBIT INDEX
Incorporated by Reference
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Exhibit Filing Date Filed
Number Exhibit Description Form File No. Exhibit Herewith
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4.1 Amended and Restated Certificate of 10-Q 000-21531 3.1 3/14/2005
Incorporation
4.2 Certificate of Amendment to the Amended and 10-Q 000-21531 3.2 3/14/2005
Restated Certificate of Incorporation
4.3 Amended and Restated By-Laws 10-K 000-21531 3.3 10/29/2002
4.4 Specimen Certificate of Common Stock 10-K 000-21531 4.1 10/14/2004
5.1 Opinion of Covington & Burling X
23.1 Consent of KPMG LLP X
23.2 Consent of Covington & Burling (included in X
Exhibit 5.1)
24.1 Power of Attorney S-8 333-123462 3/21/2005
99.1 United Natural Foods, Inc. 2004 Equity 10-Q 000-21531 10.1 12/10/2004
Incentive Plan
99.2 Form of Restricted Stock Agreement pursuant X
to United Natural Foods, Inc. 2004 Equity
Incentive Plan